Wal-mart Case Could Swell To Historic Size

Judge To Rule On Plaintiff Number

September 24, 2003|By GREG BURNS Special to the Daily Press

As sex discrimination cases go, the pending lawsuit against Wal-Mart Stores Inc. is nothing unusual except in one respect: Size.

At a pivotal hearing in San Francisco today, a federal judge will consider arguments about whether the case, brought by a half-dozen individuals, should expand to encompass a staggering 1.5 million of the retail giant's current and former employees.

If U.S. District Judge Martin Jenkins certifies the case as a class action, all the women who worked for the nation's largest employer between the end of 1998 and the end of 2002 could be eligible for back wages. That would make it the biggest-ever class-action litigation involving civil rights, attorneys in the case say.

At issue is whether Wal-Mart, the world's largest private employer, systematically discriminated against women in its pay and promotion policies.

But the sheer scale of the litigation has become the overarching factor. Class-action status for such a large case would break new ground in a controversial arena of the law that critics consider out of control and proponents view as a vital check on corporate power.

Wal-Mart's status as a respected model for other large employers raises the stakes as well, especially with the rise of mega-companies whose practices directly affect hundreds of thousands at a time.

Wal-Mart has said its adversaries are trying to hold it responsible for a long-established phenomenon in the American workplace: "The undisputed fact, present in virtually every major corporation, that the percentage of women at the lower level is higher than the percentage at the upper level," according to documents in the case.

In the hearing today, attorneys for the Bentonville, Ark.-based retailer are expected to argue that because its operations are so large and varied, the experiences of a few employees could never be entirely representative. The lawsuit would create conflicts by lumping together in a single class the company's bottom-rung cashiers, for instance, with 544 women store managers who supervised them.

Since Wal-Mart has so many different departments under one roof, taking action against the entire company is akin to suing "all the shops" on main streets from Alaska to Florida, the company said.

But by pursuing a "too-big-to-sue" defense, "Wal-Mart is seeking a large-company exemption from civil-rights law," countered Joseph Sellers, one of several attorneys bringing the discrimination case. "If Wal-Mart can get away with it because of its size and deep pockets, it's going to speak volumes."

The issue of class certification is the most significant hurdle, observers maintain.

Given the "astronomical" resources of Wal-Mart, its low-wage female employees have no practical means besides class-action litigation to enforce their rights, the plaintiffs said in court documents. Wal-Mart "knows that if it can defeat class certification, it will not be held accountable for its conduct."

Yet proceeding with a vast class action would be unfair to Wal-Mart as well as a logistical nightmare for the legal system, countered corporate spokeswoman Sarah Clark. "No court has ever certified a class like this before," she said. "It's simply not possible for the experiences of so few to represent so many."

In practice, certification almost surely would compel Wal-Mart to settle, no matter the merits of its arguments, said Lester Brickman, a law professor at Yeshiva University and a critic of class-action practices.

Even if the company believed it had a strong case, the consequences of losing such massive litigation would be too great a risk, he said. The class-certification decision is "the whole ball game," he said. "There is either a home run or an out."

The case turns on a dispute over the statistical analysis of Wal-Mart's work force, as defined by dueling expert witnesses. That, attorneys say, is a fairly common approach to sex-discrimination cases.

On the plaintiff's side, the numbers show that Wal-Mart pays women less than men in every part of the country where it operates and in nearly every job, from sales associate to district manager. And although women account for two-thirds of lower-paid hourly workers, they receive only one-third of all promotions into management.

The pay disparity generally rises in more senior posts. Even among cashiers, men earned $14,525, compared to $13,831 for women, who tended to receive higher performance ratings.

Until recently, Wal-Mart selected management trainees entirely through a "tap on the shoulder" system, allowing store managers discretion over who was considered that plaintiffs brand as arbitrary and overly subjective.

As a result, the plaintiffs say, Wal-Mart has maintained a pervasive male-oriented culture typified by an annual retreat for senior management that revolves around a quail hunt.

Some advocates for using class action litigation to bring about change in the workplace see great potential in the case. "Litigation is so difficult for individuals. In groups, they have more power," said Sheribel Rothenberg, a Chicago attorney who focuses on employment issues. "It's like this generation's unionization. Class actions serve some of the same functions."

But others say that partly because of its size, the case is unlikely to move ahead. "The policies and data probably do vary by store," said John Beisner, a Washington attorney who specializes in defending against class-actions. "It's probably fairly difficult to certify."

Greg Burns is a reporter for the Chicago Tribune, a Tribune Publishing newspaper.